Davis Ex Rel. Allen v. Rigsby

The basis of defendant’s appeal is his contention that plaintiff’s evidence establishes his contributory negligence as a matter of law. Plaintiff’s argument is that, notwithstanding his own testimony to the contrary, he offered defendant’s testimony that he had drunk no intoxicants that night and that this conflict in the evidence was for the jury to resolve. Ordinarily this would be true, but plaintiff overlooks the positive allegation in his complaint that at the time of the accident defendant was operating his automobile while under the influence of an intoxicating beverage thereby…